f/k/a archives . . . real opinions & real haiku

September 23, 2003

formative moments — legal ethos and ethics (a non-posting)

Filed under: pre-06-2006 — David Giacalone @ 8:01 pm

The Editor insists that the following intercepted e-mail to Scheherazade is a reminiscence, rather than an actual posting in violation of his self-imposed hiatus on blogging.  You can judge for yourself, but I think he’s fallen off the wagon on this first day of Fall.  s/Jack Cliente, designated alter ego.

Hello, Sherry,

I wanted to tell you how two short clips on last night’s news reminded me of my very early years in the law arena and how important just a small gesture or event can be in the life of a legal neophyte:

1) South Dakota Rep. Bill Janklow finally held a press conference, yesterday, saying how sorry he was about the fatal accident he caused last month.  (Don’t get me started about politicians getting special treatment from the law concerning traffic violations.)    Hearing that he had been the State Attorney General before his four terms as governor got me wondering if he was the South Dakota Attorney General in 1977, when I happened to be in that State for an electrical utility rate hearing, in early.  I was a cub lawyer only six months out of school.  The D.C. firm I worked for represented the interests of utility consumers in many contexts, and we were actually serving as the staff of the PUC, which had only started regulating private electrical rates in 1975.    I got online after seeing the news clip, and found out at Janklow’s congressional website that he had indeed been A.G. while I was there.
dagSicilianAfro Why should that matter?  During the lunch break in the hearing, I went to the cafeteria in the State Capitol with the lawyer on the other side (the head of the largest firm in town, who was representing the utility company).  When we walked in, a man sitting at a table across the room made a big fuss, calling the utility’s lawyer over to him, and in a loud, mocking voice, asked him “Who’s the foreigner with you?”   You see, despite my suit and tie, with my goatee, southern Italian features, and fairly large “Sicilian Afro,” I didn’t look like a lawyer was supposed to look.  I felt especially humiliated and angry, when I was told that the taunter was the Attorney General of the State.  That feeling that I didn’t belong in “the club,” despite my elite law school stayed with me a long time.  It made me sensitive to, and committed to help avoid and prevent, stereotypes of all types.

2)  On a much more positive note, I also saw Mark Rosenbaum on the tv news, arguing before the en banc Ninth “Circus” on behalf of the California ACLU in the recall election case.   Hearing the name and the affiliation, I recalled that back in 1974, as a first-year law student, I did my first-ever legal research and memorandum on a “real” case for Mark, as an extracurricular project.  The California ACLU wanted to halt an “Alpha List” that was being collected by the authorites on supposedly trouble-making adolescents.   When Mark got my memo on when and whether the government could stigmatize individuals, he took the time to call across the continent (a big deal three decades ago) with high praise for the work.    A “real” lawyer had given me a compliment (as opposed to many professors who still believed in ridicule as an incentive).  He could never know how good that made me feel, nor how much confidence he gave me in my budding abilities.   I should have let him know in the years since then, and I should never forget how important positive feedback can be for any neophyte (and oldies, too).
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3)   Yesterday’s reminder of my work in South Dakota brought back some other formative memories.  The local newspaper, The Pierre Times, timed a front-page expose and lead editorial to coincide with our visit — complete with photos of the two bearded attorneys, who it was stressed where outsiders from D.C.  You see, it was a shock and scandal that the PUC was paying supposedly huge sums of money to consultants and lawyers from out of state.   The editorial demanded to know why the PUC could not find local lawyers and rate experts, rather than “East Coast firms,” and it asked how the utility customers must feel having outsiders make the decisions instead of the PUC.
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One thing was clear, the prominent local lawyer, who represented every private utility company in the State, was the moving force behind the article.  The PUC had recently refused $7 million of the $18 million in rate hikes his various clients had sought, siding with it staff and consultants on virtually every issue.   The customers were probably feeling pretty good, but the utility company clients definitely were not.,
As a direct result of this pressure, the PUC hired a law professor from the State’s only law school to represent it on the next appeal from a rate determination.   Because so many issues were first impression (given the new regulatory scheme), there were several dozen issues raised by the utility company, and I believe the PUC opinion was over 100 pages long (I had written the first draft).  The in-state professor submitted an appellate brief that was literally less than two full pages, with more than half of the first page being the caption, and the introductory paragraphs detailing the dates in the rate-hike process.   There was one sentence of legal argument, which I can only paraphrase all these years later:  “All actions of the Commission were fair and reasonable and supported by the facts and law.”   Needless to say, the PUC decided to bring back its D.C. lawyers for the next brief.  But, our firm’s job was to help train the local staff, which was able to take over shortly thereafter.
That episode was my first exposure to (1) the parochialism and fear of competition of a local bar, (2) the clout of politically-connected lawyers; and (3) the vast difference in diligence and competence that existed within the practice of law.   I was also amused to think of how many more pages my regulatory law professor would surely have submitted were he given the chance to file a similar brief (it was Steven Breyer, who does tend to do thorough work).
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Looking back, the seeds of the lawyer and advocate (and person) I have become can be seen in each of these instances.  I hope I haven’t taxed your patience setting them out at length here.   Now, I need to get back to my non-blawggie week off.
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best wishes,
David

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